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September 14, 2011

"Of Speech and Sanctions: Toward a Penalty-Sensitive Approach to the First Amendment"

I just came across this interesting paper by Michael Coenen, which has the same title as the title of this post, which has become my must-read for today because the piece touches on a few topics I have been thinking about a lot in recent years in two particular sentencing settings.  Let me here quote the SSRN abstract and then briefly explain my particular sentencing law spin:

Free-speech adjudicators seldom scrutinize the severity of a speaker’s sanction. Embracing a “penalty-neutral” understanding of the free-speech right, courts tend to treat an individual’s expression as either protected, in which case the government may not punish it at all, or unprotected, in which case the government may punish to its heart’s content.  There is, however, a small body of “penalty-sensitive” case law, which runs counter to the penalty-neutral norm. On the penalty-sensitive approach, the severity of a speaker’s punishment affects the merits of her First Amendment claim, thus giving rise to categories of expression that the government may punish, but only to a certain extent.

This Article defends the penalty-sensitive approach and calls for its expanded use within First Amendment doctrine.  Pulling together existing strands of penalty-sensitive doctrine, the Article identifies five ways in which penalty sensitivity can further important constitutional objectives: (1) increasing fairness for similarly-situated speakers; (2) mitigating chilling effects on protected speech; (3) facilitating the “efficient breach” of constitutionally borderline speech restrictions; (4) rooting out improper government motives; and (5) giving effect to certain “hybrid” speech rights.  The Article also considers potential objections to the penalty-sensitive approach, concluding that, while the utility of the approach will vary from case to case, penalty sensitivity can provide effective solutions to difficult First Amendment problems.

I am draw to this paper because I have long worried that the "true problem" with modern extreme federal prison terms for merely downloading some child porn or for illegally possessing a gun under certain settings is a lack of "penalty sensitivity" given the sometimes close relationship between constitutionally protected First (or Second) Amendment behavior and unprotected behavior that can now land a defendant in prison for decades.  (if/when I get a chance to read this new paper closely, I may have a lot more to say on this topic.)

September 14, 2011 at 11:11 AM | Permalink


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Once one understands the real nature of mala prohibita, to rob the taxpayer at the point of a gun, then this complex, individualized approach is not necessary. There should a rebuttable presumption that all mala prohibita are crimes themselves.

All crimes should directly, proximately harm a person physically, damage property or generate an economic loss. All laws and regulations should be pilot tested to be proven safe and effective, with tolerable unintended consequences. The science required in Daubert should apply to all legislation. Science is superior in power to the constitution.

Any legislator who fails to repeal a law failing to meet the above proofs should be arrested for insurrection against the constitution, tried, and executed. To deter.

Posted by: Supremacy Claus | Sep 14, 2011 1:18:35 PM

Would summary execution for all offenses be malum in se or an abuse of discretion ?

Posted by: Jim Brady | Sep 15, 2011 6:48:05 AM

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